Item the first: Far more ink
(and cyber ink) will, and deserves to be, used to dissect
yesterday’s ruling by the U.S. Fourth Circuit Court of Appeals to
the effect that neither Virginia Attorney General Ken Cuccinelli
nor Liberty University has legal “standing” to challenge Obamacare.
And while most of the focus will probably rest on the setback for
rising conservative star Cuccinelli, the most indefensible of the
rulings is the one involving Liberty.
As will be duly noted in every news story on the rulings,
neither dismissal actually addressed the substance of the
constitutional challenges — although two of the liberal judges
indicated they would have upheld the law if they had not dismissed
the suits on other grounds. On the issue of standing, they
dismissed Cuccinelli’s suit — wrongly in my opinion — because
they said the state itself (as opposed to individual citizens) was
not burdened by the “individual insurance mandate” at issue. All
along, I and others have thought that Cuccinelli might lose on this
“standing” issue because his argument isn’t exactly a common one.
His argument is correct — namely, that he is protecting a state
law against the mandate, and a state has every right to go to court
when the feds contradict a state law in a way the state believes is
unconstitutional — but it’s not enough of a slam dunk to overcome
determined liberal jurisprudence.
The Liberty suit is another matter; indeed, it’s sort of
the converse. Whereas the university’s “standing” argument should
have been unassailable, its argument on the constitutional
substance is correct but far from a slam dunk. What’s really
strange is that the judges didn’t even let the school reach the
legal substance, because they rejected the university’s logically
airtight standing to sue in the first place. The grounds on which
the judges made the decision are so ludicrous as to be
intellectually bankrupt.
Against all reasonable evidence and against the rulings of
every other court, both liberal- and conservative-dominated, that
has considered the issue, this Fourth Circuit panel concluded that
the mandate actually operates as a “tax.” Congress has broader
powers to tax than it does merely to regulate; thus, legal
challenges to a tax face a higher bar. Because these obstreperous
judges say it is a tax that hasn’t actually been imposed yet (it
has been passed by Congress but not yet implemented), they say the
university has suffered no harm yet and thus can’t sue.
The absurdity is that the mandate is in no way a tax. By
both definition and implementation, it imposed no tax but instead a
penalty for non-compliance. President Obama himself repeatedly
argued in public that it wasn’t a tax. Congress didn’t call it a
tax. And every other court — at least four district courts and two
appeals courts — that has analyzed this claim has made mincemeat
of the administration’s contention that it is a tax. Most of those
courts haven’t just rejected the claim; they have eviscerated
it.
As the 11th Circuit Court of Appeals (including a Bill
Clinton appointee) put it, “The plain language of the statute and
well-settled principles of statutory construction overwhelmingly
establish that the individual mandate is not a tax, but rather a
penalty. The legislative history of the Act further supports this
conclusion…. [A]s the statute itself repeatedly states, [it is] a
‘penalty’ imposed on an individual for failing to maintain a
minimum level of health insurance coverage.” If it is not a tax,
then the legal bar against challenging the mandate is lower and far
more easily overcome.
This ruling against Liberty University’s very standing to
challenge the law in the first place is an abomination of judicial
legislating, willfully pretending that a provision of the law means
something completely different from what its words themselves
clearly state. This ruling is fundamentally dishonest and thus a
violation of the judges’ oath to faithfully uphold the
Constitution. For shame.
Item the second: Here’s a
prediction: If Sarah Palin does not get into the race for
the Republican presidential nomination, there will be one more
major entry into the field. That new entrant, who may well win the
nomination, will be either Jeb Bush or Louisiana Governor Bobby
Jindal.
Jindal? Huh? Isn’t he up for re-election in Louisiana this
November, thus precluding him from organizing a presidential
campaign?
Yes and no. Yes he’s up for re-election, but no, that
doesn’t preclude the presidential attempt. Qualifying for governor
closed on Thursday without a single major opponent entering the
fray; only several unknown, no-chance candidates decided to
challenge Jindal. His team will deny it, and I have absolutely zero
“inside information,” but the coast is clear for him to coast to
re-election with well over 60 percent of the vote while spending
most of his would-be campaign time actually organizing a
presidential run. He might miss the presidential primary/caucus
qualifying deadline in a state or two, but he’ll calculate that he
might be able to win without them.
This is not to say I think he would be the best nominee.
It is merely a prediction, not a wish.
As for Jeb Bush, I think the bad blood between the Bushes
and Rick Perry is so severe, and the concerns of the GOP
establishment about Perry’s general-election weaknesses are so
deep, that the former Florida governor will again feel serious
pressure to run if it looks like Perry otherwise might coast to the
nomination. Again, this is not a wish — I have said for years that
I think I’m allergic to Bushes — but it is what my internal,
invisible Tarot cards are telling me.
Item the third: Now, to the
important stuff. I think it’s a crying shame that Peyton Manning, a
true class act, will be missing most of this football season due to
neck surgery. Manning is one of those rare athletes who can win all
sorts of awards while playing and still not be fully appreciated
until after he’s gone (which, in terms of his career, I certainly
hope won’t be for another four or five years!). I think it is
likely that he is the single best regular-season quarterback ever.
The Patriots could lose Tom Brady and still win 11 games; the
Steelers could win 3 of four games with Ben Roethlisberger gone;
but I am betting the Colts don’t even come close to being a .500
team while Manning is out.
As for his post-season record, he gets too much blame. The
man has led his team to a Super Bowl victory (although one of the
running backs, not Manning, should have won the MVP award for the
game itself), and he played absolutely superbly in another Super
Bowl until one unfortunate timing pattern in which his sore-kneed
receiver wasn’t able to make his “cut” to the ball as quickly as
usual; and in a number of the Colts’ other playoff losses, Manning
has played quite well only to see his defense fail or other
occurrences out of his hands block victory. Indeed, I think there
has only been one playoff game, in all the two dozen or so in which
he has played, in which he really played poorly. Granted, in a
number of those playoff games he has been merely good rather than
his usual, regular-season superb — which is why he can’t be placed
above the clutch multiple-championship winners like Joe Montana,
John Elway, and Johnny Unitas. Nevertheless, if you review the game
tapes, you won’t see a playoff choker; you’ll just see somebody
whose competition rose to the occasion.
Anyway, here’s sending good wishes to Manning for a full
and fast recovery. I’ve watched his career, literally often
close-hand, since he was a four-year-old sitting in the Superdome
stands watching his father play for the Saints. It is safe to say
that he is a pro’s pro and as classy an individual, from as classy
a family, as you’ll ever find in the ranks of elite
athletics.
